The attached document replaces the document previously issued with the above code on 18 December 2020.

At paragraph [22], line 2, the word "positions" now reads "position".

At paragraph [31], line 1, the words "The application" now reads "The originating application".

[2020] FWC 6883

Fair Work Act 2009

Section 236 - Application for a majority support determination

Construction, Forestry, Maritime, Mining and Energy Union

Application for a majority support determination - production of documents - determination of outstanding issues - settlement of order

[1] This decision and accompanying order give effect to a production order decision made by the Commission on 27 November 2020 (Decision).[1]

[2] The Decision concerned an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for orders that J Blackwood & Son Pty Ltd (Blackwoods) produce documents under section 590(2)(c) of the Fair Work Act 2009 (the FW Act) in advance of hearing the CFMMEU's application for a majority support determination under section 236(1) of the FW Act

[3] The Decision determined that the CFMMEU's application be granted in part. I concluded:

"[71] I have indicated that a production order will be made with respect to categories 1, 4, 7, 8 and 9,

[72] I have indicated that the terms on which documents in these categories are sought are too broadly or imprecisely framed. I have indicated provisional views on the limits which should apply.

[73] I have also expressed a provisional view on the appropriate time frame for documents relevant to certain categories, being the twelve-month period October 2019 to October 2020.

[74] I also indicate that the order should restrict the use of produced documents to these proceedings only. Categories 1 and 8 clearly refer to documents of a commercially sensitive nature. The order will permit content of a commercially sensitive nature and not of ostensible relevance to be redacted, provided the utility of the document(s) in these proceedings is not compromised. The order will require a copy of these documents be produced to the legal advisers of the applicant Union and only to those officials directly concerned with instructing on the application and that they not be distributed, further copied or communicated more widely to members or other persons without leave of the Commission, and that all copies be returned to the employer or destroyed at the conclusion of these proceedings.

"[75] I direct that the parties confer within seven days on the provisional views I have expressed with the view to reaching an agreed position (insofar as possible) on the terms of an order consistent with this decision. I also direct that the parties confer on what would be a reasonable period of time for the employer to produce the relevant documents. I further direct the applicant Union to file a draft production order consistent with this decision within fourteen days."

[5] Despite consultation, no agreement was reached between the CFMMEU and Blackwoods on the terms of the production order consequent on the Decision. Each has filed a draft Order.

[6] I heard further from the parties on 17 December 2020.

[7] I now deal with the issues requiring determination.

[8] The CFMMEU propose that the documents produced be provided to its "legal advisers and to those officials directly concerned with instructing on the application and to any witnesses upon which the Applicant relies".

[9] Blackwoods propose that the documents produced be produced only to a named internal legal adviser of the CFMMEU and to the Union's named legal counsel in the matter.

[10] I agree with the CFMMEU's formulation. The Decision provided:[2]

"The order will require a copy of these documents be produced to the legal advisers of the applicant Union and only to those officials directly concerned with instructing on the application..."

[11] The Applicant's external counsel and internal legal officers are required to act on instructions. The Union's case would be unreasonably constrained if those directly concerned with instructing its legal advisers and counsel were unable to be shown relevant documents on which instructions are sought.

[12] However, I agree with Blackwoods that it is reasonable for the company to know to which officials the commercially sensitive categories of documents have been provided given the size and breadth of the Union. I will require the CFMMEU to provide a list of names of those instructing officials within fourteen days of production and for the provision of updates to that list as an ongoing obligation during these proceedings.

[13] I agree with the CFMMEU that it is appropriate that should a witness (if any) called by the Union require access to a document produced in order to prepare or give evidence in these proceedings that they be provided with such access for the purposes of preparing their evidence. The order will allow production to a relevant witness "where required".

[14] Blackwoods seek that limits on dealing with the documents produced relate not just to "distribution, communication or copying" but also "inspection". This is reasonable and necessarily follows from the Decision.

[15] Blackwoods also seek an express reference in the order that such dealings be "restricted to proceedings B2020/471 only". This is consistent with paragraph [74] of the Decision. It will be included in the order.

Contracts with third parties on garment services - category 1

[16] The CFMMEU seek that the order describe the type of garment services in a similar manner to the order sought in its originating application (but limited to the three contractors provided for in the Decision and restricted to services on goods passing through the relevant workplace).

[17] In the Decision I observed:[3]

"[42] My provisional view is that it would be reasonable for the time constraint to be those contracts with any of the three contractors (only) in operation during the twelve month period prior to filing the substantive application (October 2019 to October 2020) and apply only with respect to contracts for services on goods that included goods distributed through the Regency Park warehouse."

[18] I will refer to "garments, workwear or apparel distributed through the Regency Park distribution centre". This encompasses the goods contemplated. Rather than just refer to "alteration services" I will also refer to "alteration, ornamentation, embroidery, embellishment or printing services" as sought by the CFMMEU. There appears no dispute to using this language, noting that disagreement has been foreshadowed as to whether such services are performed by distribution centre employees.

[19] The CFMMEU seek "position descriptions howsoever described" for the relevant roles that are referenced by category 4 and category 9 documents in the Decision.

[20] Blackwoods propose that "generic position descriptions" be provided.

[21] If generic position descriptions do not exist, the order with respect to these categories would have no effect. However, Blackwoods correctly submit that the identity of individual persons holding these positions (including personal details) is not the focus of the order or the purpose of production.

[22] I will order the production of generic position descriptions if they exist or otherwise the production of position descriptions but with personal details redacted.

[23] In the Decision I observed:[4]

"...in the first instance, I will only require production of a representative sample of work orders for the relevant period (accompanied by a statutory declaration that the documents produced are a representative sample). Documents already produced by Blackwoods as attachments to its filed witness statement (IMH-10) are a reasonable guide as to the type of work orders that may need to be produced as part of a representative sample. Should the representative sample produced not be sufficient, the Union would have its rights reserved to make a fresh application for further or better production."

[24] Blackwoods propose "a representative sample of 10 work orders".

[25] The CFMMEU propose "a representative sample of any class of documents recording, in respect of any request...".

[26] I am satisfied that production of a representative sample of ten work orders would, at this stage, be sufficient. However, the nature of the orders require descriptions, as per category 8 of the Decision. I will include in the order the words "for the alteration, ornamentation, embroidery, embellishment or printing of garments, workwear or apparel".

[27] In the Decision I observed that a reasonable period should be provided for the employer to produce the relevant documents.

[28] Blackwoods propose it be given until 31 January 2021.

[29] In light of the multiple categories of documents to be produced, the accompanying conditions on production (including relevant statutory declarations) and the Christmas/New Year period, I consider that a six week period as sought is reasonable.

[30] I will order production by close of business 31 January 2021.

[31] The originating application will be relisted for further directions at 2.15pm (ACDT) 11 February 2021.

[32] This determines matters requiring resolution.

[33] An Order[5] consistent with this Decision, and the primary production order Decision, is issued in conjunction with its publication.

Paris Dean, of counsel with permission, for the Construction, Forestry, Maritime, Mining and Energy Union

Rachel Lee, with permission, for J. Blackwood & Son Pty Ltd

[1] [2020] FWC 6368

Printed by authority of the Commonwealth Government Printer